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Status
The Trump administration issued five Endangered Species Act implementing regulations, and the Biden administration has revised or rescinded all five rules including the rule setting forth procedures for FWS critical habitat designations and the definition of “habitat” for the purpose of critical habitat designation.
Why it Matters
The Endangered Species Act provides protections for threatened and endangered species, but the level of protection given to each species and the amount of species protected depend on how agencies interpret the Act and apply it through regulations. The regulations contain detailed definitions and the steps that the FWS and the NMFS and other agencies need to take in order to apply the protections in the Act to species and their habitats. The regulations are the “how-to” guide that upholds the purpose of the Endangered Species Act, “to protect and recover imperiled species and the ecosystems upon which they depend.”
In 1973, Congress passed the Endangered Species Act (ESA) and designated two agencies to share responsibility for administering the Act: FWS in the Department of the Interior and NMFS in the National Oceanic and Atmospheric Administration in the Department of Commerce. In 1978, 1982, and 1988, Congress amended the ESA in significant ways but kept the framework of the Act and its key provisions in place.
Over the years, the U.S. Fish and Wildlife Service and National Marine Fisheries Service have issued numerous rules that form the regulations that the FWS and NMFS use to apply the Act and other agencies use to comply with it.
Key Resources
CleanLaw — The Endangered Species Act at 50: Potent Statute, Risky Future
Trump administration
July 25, 2018 The FWS and NMFS released three proposed ESA implementing rules which would change what factors agencies can consider in listing decisions, how newly listed threatened species are classified (FWS only), and how interagency consultation is managed.
Aug. 12, 2019 The FWS and NMFS issued three final rules. Revision of the Regulations for Listing Species and Designating Critical Habitat (known as the Listing Rule) allows agencies to take “economic and other impacts” into account when listing, delisting, and reclassifying species. Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants (FWS only, known as the “Blanket Rule”) requires federal agencies to review protections for newly listed threatened species on a case-by-case basis. Revision of Regulations for Interagency Cooperation (known as the “Interagency Coordination” rule) loosens the requirements for federal agencies engaging in required ESA interagency consultation.
Aug.-Sep. 2019 Environmental groups and states filed lawsuits challenging the three final rules released. Center for Biological Diversity, et. al. v. Bernhardt, et. al., Case No. 3:19-cv-05206 (N. D. Cal.); State of California, et. al. v. Bernhardt, et. al., No. 4:19-cv-06013 (N. D. Cal.); Animal Legal Def. Fund v. Bernhardt, No. 19-cv-06812 (N.D. Cal.).
May 18, 2020 The Northern District of California dismissed the case filed by environmental groups challenging the three rules finalized in August 2019, but allowed the case filed by states to proceed. Center for Biological Diversity, et. al. v. Bernhardt, et. al., Case No. 3:19-cv-05206 (N. D. Cal.); State of California, et. al. v. Bernhardt, et. al., No. 4:19-cv-06013 (N. D. Cal.); Animal Legal Def. Fund v. Bernhardt, No. 19-cv-06812 (N.D. Cal.).
Aug. 5, 2020 The FWS and NMFS proposed a fourth new rule to add a definition of “habitat” to their ESA implementing regulations.
Sep. 8, 2020 The FWS proposed a fifth new rule for designating critical habitat, outlining when and how the agency would exclude certain lands from critical habitat designation.
Dec. 16, 2020 The FWS and NMFS finalized the rule defining “habitat” in their ESA implementing regulations. The rule limits the agencies’ approach to designating critical habitat.
Dec. 18, 2020 The FWS finalized the rule for designating critical habitat, establishing a process for excluding areas of critical habitat.
Biden Administration
Jan. 20, 2021 President Biden ordered the FWS and NMFS to review several Trump-era ESA regulations.
February 9, 2021 The parties agreed to stay the case challenging the three 2019 ESA rules given that FWS and NMFS will be reviewing the rules. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.).
October 7, 2021 The Northern District of California lifted the stay in the case challenging the three 2019 ESA rules because time had passed and the rules had not been revised. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.).
Oct. 27, 2021 NMFS and FWS proposed rescinding 2020 changes to the definition of “habitat” and proposed to rescind the 2020 changes to how FWS excludes areas of critical habitat under the ESA.
Dec. 2021 The federal government asked the court to remand the three 2019 rules to the agencies without vacating them; environmental plaintiffs asked the court to vacate the three 2019 rules. Animal Legal Defense Fund v. Department of Interior, 4:19-cv-06812 (N.D. Cal.).
June 23, 2022 FWS and NMFS finalized a rule that rescinds the 2019 regulatory definition of “habitat” established by the Trump administration.
July 5, 2022 The Northern District for the District of California vacated the three 2019 ESA rules. Animal Legal Defense Fund v. Department of Interior, No. 4:19-cv-06812 (N.D. Cal.).
July 21, 2022 FWS finalized the rule rescinding the Trump administration’s 2020 changes to how the agency excludes areas of critical habitat under the ESA. The same day, intervenor defendant states and other organizations filed a notice of appeal to the Ninth Circuit. Animal Legal Defense Fund v. Department of Interior, No. 4:19-cv-06812 (N.D. Cal.).
Sep. 22, 2022 The Ninth Circuit stayed the District Court’s order vacating the three 2019 ESA rules,. The Trump administration’s three 2019 rules are now back in effect. In re: Washington Cattlemen’s Association, No. 4:19-cv-06013 (9th Cir.).
Feb. 8, 2023 For the 50th anniversary of the ESA, FWS proposed a rule under Section 10 of the ESA to strengthen voluntary conservation efforts. The proposal would clarify requirements for incidental take permits, which FWS issues when a non-federal entity takes species in the course of otherwise lawful activities. The proposal would also clarify and simplify requirements for acquiring enhancement of survival permits, which FWS issues when a non-federal landowner takes a conservation action that is beneficial to a species. The proposal would allow the FWS to issue these permits for non-listed species without needing to include a listed species.
June 22, 2023 FWS and NMFS proposed the Interagency Cooperation Rule, which would revise certain definitions from the 2019 Interagency Coordination rule and make other amendments to section 7 of the Endangered Species Act. FWS and NMFS proposed changes to the 2019 Listing Rule. The proposal would restore pre-2019 language and clarify that agencies may not “the economic impacts and any other impacts that might flow from a listing decision must not be taken into account when making listing, reclassification, and delisting (collectively, classification) determinations.” FWS proposed to restore the Blanket Rule, which would allow agencies to give additional protections to threatened species under section 4(d) of the Endangered Species Act.
Apr. 5, 2024 The FWS and NFMS finalized three rules that revise regulations from the Trump Administration. The Interagency Cooperation Rule revises certain definitions from the 2019 Interagency Coordination Rule and makes other amendments to Section 7 of the Endangered Species Act. The Blanket Rule allows agencies to give additional protections to threatened species under Section 4(d) of the Endangered Species Act. The revisions to the 2019 Listing Rule remove “reference to possible economic impacts” in listing, reclassifying, and delisting species.
Apr. 12, 2024 The FWS finalized the Enhancement of Survival and Incidental Take Permits Rule under Section 10 of the ESA to strengthen voluntary conservation efforts.